B-310822.2, Goel Services, Inc., May 23, 2008
Decision
Matter of: Goel Services, Inc.
Abiye
Tibebe, Esq., Quagliano & Seeger, PC, for the protester.
Lawrence M. Prosen, Esq., and Joel S. Rubinstein, Esq.,
Timothy C. Tozer, Esq., General Services Administration, Public Buildings
Service, for the agency.
Paula A. Williams, Esq., and Ralph O. White, Esq., Office
of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protester’s contention that the agency failed to apply the Historically Underutilized Business Zone (HUBZone) price evaluation preference is denied where the solicitation did not include the HUBZone price evaluation preference; to the extent the protester argues that the preference should have been included in the solicitation, the protest is untimely as the protester did not challenge the terms of the solicitation until after the agency made an award.
DECISION
Goel Services, Inc. protests
the award of a contract to Grunley Construction Company under invitation for
bids (IFB) No. GS-11P-07-MKC-0093 issued by the General Services Administration
(GSA) for construction services. Goel
contends that GSA improperly failed to apply the HUBZone price evaluation
preference to the bids received which prevented the firm from receiving the
award.
The IFB, issued on
In its initial protest, Goel challenges the award to
Grunley alleging that under Federal Acquisition Regulation (FAR) sect. 19.1308 the agency
should have applied a 10 percent price evaluation preference for HUBZone firms such as itself, and
argues that, with the preference, it would have been next in line for award. In answer to the protest, the agency advised
Goel, and our Office, that the solicitation mistakenly failed to include the
clause implementing the HUBZone price evaluation preference. Agency Request for Dismissal at 1. Goel replies that even if the solicitation
did not include the clause, the agency was required to apply the price
preference here.
We
disagree. Given that the agency did not
include the clause in its solicitation, the agency did not violate the terms of
the solicitation by failing to apply the preference. In addition, despite the protester’s
arguments to the contrary, there is no requirement that mandatory provisions
must be incorporated into solicitations by operation of law when they have been
omitted. See American Imaging
Serv., Inc.--Recon., B‑250861.2,
Moreover, to the extent the protester is now arguing that
the HUBZone price evaluation preference should have been included in the
solicitation, the protest is untimely.
Our Bid Protest Regulations contain strict rules for the timely
submission of protests. They
specifically require that a protest based upon alleged improprieties apparent
on the face of the solicitation, such as Goel’s challenge to GSA’s failure to
include the HUBZone price evaluation preference in the solicitation,[2]
must be filed prior to bid opening. See
Bid Protest Regulations, 4 C.F.R. sect. 21.2 (a)(1) (2008). Applying this rule, Goel’s protest is
untimely since it was not filed before the
Goel argues, however, that our regulations permit us to
consider an untimely protest “for good cause shown” or where we determine that
a protest raises issues significant to the procurement system. 4 C.F.R. sect. 21.2(c). We conclude that neither exception is
appropriate here.
Our timeliness rules reflect the dual requirements of
giving parties a fair opportunity to present their cases and resolving protests
expeditiously without unduly disrupting or delaying the procurement
process. Air Inc.--Recon.,
B-238220.2,
Here, Goel has offered no compelling reason for its
failure to protest prior to bid opening, thus the “good cause” exception has no
application. We also see nothing in the
record to suggest that Goel’s protest issue is of widespread interest to the
procurement community warranting its resolution in the context of an otherwise
untimely protest. As a consequence, we
decline to address this protest issue here.
Finally, we note that Goel raises another basis of protest
for the first time in its
The protest is denied.
Gary L. Kepplinger
General Counsel
[1]
GSA rejected as late a bid received from Biscayne Contractors, Inc. after being
informed by Goel that it believed the Biscayne bid was late. Protester’s Opposition to Agency’s Request to
Dismiss at 5. On
[2]
A contracting agency is required to include FAR sect. 52.219-4, notice of price
evaluation preference for HUBZone small business concerns, in solicitations
using full and open competition procedures.
FAR sect. 19.1308(b).